Author Archives: James Daily

Getting Rich with Superpowers, Part 1: Insider Trading

Posted on January 25, 2012 | 38 comments

We’ve previously talked about how immortal beings might find it difficult to amass significant wealth simply by virtue of living a long time.  This post marks the first in a series on how other common superpowers might be used to make money in the short term.

One way to make (or lose) a lot of money is via the stock market, and several superpowers lend themselves to taking advantage of the market: telepathy, enhanced senses, invisibility, and time travel, just to name a view.  Each of these could be used to come across valuable information without necessarily breaking any other laws (e.g. without trespassing).  For example, someone with Superman-level enhanced hearing could easily overhear a boardroom conversation, and an invisible person could similarly overhear sensitive conversations in public places. The question, then, is whether using any of this information would run afoul of insider trading laws.

(Note: do not try any of this at home, at least without consulting a competent attorney in your jurisdiction.)

I. Insider Trading

There are three major theories of insider trading liability.  First, one cannot trade on material, nonpublic information if one owes a fiduciary duty  to other traders in the marketplace. Chiarella v. United States, 445 U.S. 222 (1980).  This covers the most common types of insider trading: corporate insiders who trade on confidential information or who give confidential information to an outsider in breach of a fiduciary duty.  See also Dirks v. S.E.C., 463 U.S. 646 (1983).

The second theory is “misappropriation.”  “The misappropriation theory holds that a person commits fraud “in connection with” a securities transaction, and thereby violates § 10(b) and Rule 10b–5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.”  United States v. O’Hagan, 521 U.S. 642, 652 (1997).  This, then, covers the case in which the source of the information is a patsy rather than complicit.  It still requires that the misappropriator owe the source a fiduciary duty, however.

The first two theories are based on applying common law theories of fraud to the SEC rule against fraudulent trading.  The third theory is based on Rule 14e-3, which specifically forbids a certain type of insider trading.  “Rule 14e-3 prohibits any person who is in possession of material nonpublic information relating to the commencement of a tender offer, acquired directly or indirectly from either the bidder or the target company, from trading in target company securities. It also makes unlawful passing on any such information where it is reasonably forseeable that the recipient will trade.”  Donald C. Langevoort, 18 Insider Trading Regulation, Enforcement, and Prevention § 1:10.  On the one hand 14e-3 is broad because there is no requirement of a fiduciary duty, but on the other hand it is narrow because it only applies to tender offers (e.g. mergers and acquisitions).

So, now that we have a rough idea of what constitutes insider trading, let’s see if any common superpowers can allow someone to acquire material, nonpublic information without running afoul of any of these theories.

II. Superpowered Reconnaissance

The first thing to do is to forget about using insider information to take advantage of a potential merger or acquisition.  Rule 14e-3 would almost certainly apply, so our hero (or villain) will have to stick to other kinds of valuable information (e.g. an R&D breakthrough or a pending product recall), and that’s the context we’ll assume for the rest of the post.

In general, merely overhearing something (e.g. a conversation between company employees) in a public space is not a violation under the first two theories because there is no fiduciary duty being broken: the recipient owes the company and its shareholders no duty, and the employees aren’t improperly tipping off the recipient.  So enhanced senses and invisibility would seem to be a good fit.

Telepathy is more problematic.  As we’ve discussed before, telepathy may run afoul of a person’s right to privacy.  Would discovering information about a company be highly offensive to a reasonable person?  Would it matter if the victim was a regular employee of a giant company or an emotionally-invested founder of a small business?  It’s hard to say how a jury would react.  It is not clear to me whether this kind of privacy violation would be sufficient to trigger insider trading laws, however.  The law prohibits the use of deception to acquire insider information, and telepathy could qualify, though it seems a bit strained. S.E.C. v. Dorozhko, 574 F.3d 42 (2d Cir. 2009) (holding that computer hacking to obtain insider information may be “deceptive device or contrivance” prohibited by Rule 10(b) and Rule 10(b)-5).

Time travel seems to be the cleanest of all: the superpowered schemer could simply wait until the information was public, then travel back in time and use it profitably.  This suggests the scheme in Primer might have been legal.

The previously mentioned prohibition against deception suggests that shapeshifting, psychic manipulation, and other forms of trickery wouldn’t work.

III. Conclusion

With the right superpowers and a little luck it may be possible to profit from the stock market without running afoul of insider trading laws.  Has this ever been tried in the comics?

38 Comments

Posted in administrative law, criminal law, securities law, torts

Daredevil, The Man Without…Jurisdiction?

Posted on January 20, 2012 | 15 comments

Here’s one for the serious law nerds: a post about federal jurisdiction and civil procedure.  Daredevil #8 opens with Foggy Nelson serving what appears to be a discovery request on a cemetery employee.  Accompany Nelson are a group of plaintiffs, approximately 15 people, though it isn’t clear if this is all of the plaintiffs or a subset.  The basis of the suit is that Suncourt Cemetery has been negligent in the caretaking of the cemetery, leading to graves disappearing into the ground.

Okay, what’s the big deal?  Well, several things are a little strange here, but nothing’s necessarily wrong.  We’ll start with the lawsuit itself.

I. Negligent Cemetery Caretaking?

It’s not completely clear what Nelson’s theory of the case is.  Foggy says that he thinks “there’s more to it than soft soil,” and we later learn that the graves have been intentionally disturbed or even removed.  This suggests that the theory is that someone has been intentionally messing with the graves and the cemetery corporation is liable for negligently failing to prevent the disturbance.

The law in New York on this subject is unclear.  On the one hand, “the cemetery is under a duty and has a right to prevent any trespass upon the cemetery and its parts and any damage arising from such trespass. This duty and this right come from the fact that individuals interested in graves and lots are entitled to look to those conducting the cemetery for redress for permitting trespass.”  Orlowski v. St. Stanislaus Roman Catholic Church Soc., 292 N.Y.S. 333, 482 (Sup. Ct. Erie Cty, 1936).

On the other hand, other cases have held that there is no implied duty to prevent the robbing of graves and that cemeteries are not liable for damage to graves caused by people not under its control or supervision.  Independent Potok Zloty Sisters & Brothers Benevolent Soc. v. Highland View Cemetery Corp., 264 A.D. 396 (Sup. Ct. App. Div. 1942); Coleman v. St. Michael’s Protestant Episcopal Church, 170 A.D. 658 (Sup. Ct. App. Div. 1915).

So the law in this area is somewhat confused and also very old, but on the whole I wouldn’t bet on the plaintiffs.  A modern New Jersey case agreed with Coleman and held that a cemetery isn’t liable for vandalism caused by a third party.  Bauer v. Harleigh Cemetery Co., 651 A.2d 1084 (Sup. Ct. N.J. 1994).  And even if cemetery owners had a duty to prevent trespass, it’s not clear how reasonable care would have prevented grave robbing by the Mole Man (well, okay, it could have been somebody else but it sure looks like his handiwork).

So the suit is a little creaky, but there’s a colorable argument, particularly in light of the conflicting precedents and their age.  Other, larger questions remain, however, questions of procedure and jurisdiction.  Since procedure depends on jurisdiction, we’ll go there next.

II. Making a Federal Case Out of It

One of the odd things about the opening scene is that Foggy is holding a document that appears to be from the United States District Court for the Southern District of New York, which includes New York City.  But the case is plainly based on New York state law, so why are they in federal court?

The logical answer is “if it isn’t based on a federal claim, then it must be based on diversity of citizenship.”  Diversity of citizenship is found in the Constitution, which allows federal suits “between Citizens of different States.”  U.S. Const. art. 3 § 2.  As a general rule, a plaintiff can sue in federal court on a state law claim if none of the plaintiffs are from the same state as any of the defendants (aka “complete diversity”) and the amount in controversy exceeds $75,000, per 28 U.S.C. § 1332.

Complete diversity seems like bad news for Foggy, as it’s unlikely (though admittedly not impossible) that all of these surviving relatives are living outside of New York.  Further complicating things: if any of the relatives are suing as the representative of the estate of the deceased rather than in their personal capacity, then their state citizenship is the same as the deceased, which is presumably New York.

But there’s another glimmer of hope: they’re suing a corporation, and a corporation is considered to be a citizen (for diversity purposes) wherever it has its principal place of business.  Suncourt Cemetery could be owned by a corporation that runs lots of cemeteries and has its principal place of business in, say, New Jersey.  Then it wouldn’t matter if all of the plaintiffs were from New York; in fact, that would be great.

Another possibility is that Foggy is actually representing a class action.  It’s certainly possible.  There are at least 15 plaintiffs and there could be a lot more.  In a class action the diversity rules are relaxed considerably.  Depending on the details of the case, which we don’t have, it can go as far as “minimal diversity,” which requires only a single plaintiff be from a different state than a single defendant.

Now that we’re more or less comfortably in federal court we can turn to the issue of how Nelson gets away with taking a soil sample with a backhoe.

III. You Got a Court Order for That Backhoe?

Federal Rule of Civil Procedure 34(a)(2) allows for parties to serve requests to “permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”  Suncourt Cemetery could oppose the request, but Foggy could then seek a court order compelling Suncourt to allow the sampling.  Since Foggy is holding up document on federal court letterhead, it seems like there has been a court order rather than a mere request.

And this makes sense because discovery happens after the complaint has been filed.  For the advanced students in the class: it probably also means the case has already survived the defendant’s motion to dismiss under 12(b)(1)  (for lack of jurisdiction) and 12(b)(6) (for failure to state a claim), which roughly correspond to sections II and I of this post, respectively.

IV. Conclusion

I have to admit, when I read the first page of this issue my gut reaction was that it was all wrong: Negligent cemetery caretaking? A state tort claim in the Southern District of New York brought by what appears to be a bunch of New Yorkers against a New York cemetery?  But surprisingly (to me, anyway) it all more or less hangs together, if a little tenuously.

In terms of writing and artwork, Daredevil continues to be great, and we recommend picking up #8 and Amazing Spider-Man #677, which contains the first half of this storyline.

15 Comments

Posted in civil procedure, torts

Legal Responsibility for Insane Robots

Posted on January 19, 2012 | 41 comments

Insane robots that turn against their creators or try to destroy humanity are a pretty common theme in lots of media, not just comics.  Of course, this is a blog primarily about comic books, so we’ll take an example from there, as inspired by a question from TechyDad, who asks about Henry Pym (aka Ant-Man) and his potential liability for the creation of the robot Ultron, which in its various incarnations has done all kinds of terrible things, including attempting to destroy the world.

I. The Setup

The first thing to consider is whether an intelligent robot could be criminally or civilly liable for its own actions.  As with all other intelligent non-humans, the answer seems to be no unless Congress explicitly allows for it.  Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).  Since Congress doesn’t seem to have done so in the comics, we must now consider whether any of the liability falls to Pym, and for that we need the facts of a particular case.

The example TechyDad wanted to know about comes from the TV series The Avengers: Earth’s Mightiest Heroes, specifically the episode The Ultron Imperative.  In the episode, Ultron nearly destroys the entire world by launching S.H.I.E.L.D.’s nuclear arsenal.  Ultimately, Pym stops Ultron at the last second, but Pym is blamed for the incident, since a) he created Ultron and b) infused it with his own mental patterns, although it may have been corrupted by Kang the Conqueror and was definitely weaponized by Stark Industries, albeit with Pym’s help.  Pym accepts the blame and admits that it was his fault.

So, then, who is liable here and for what?  We’ll start with torts.

II. Tort Liability

There are three major bases for tort liability: intentional misconduct, negligence (and its close cousin, recklessness), and strict liability.  We can definitely weed out intentional misconduct, since Pym neither intended nor had knowledge to a substantial certainty that Ultron would turn violent and try to destroy the world.

Next we consider negligence.  The key question (although not the only question) is whether Pym used reasonable care in the design and deployment of Ultron (i.e. whether the cost of avoiding the incident was more or less than the expected value of the harm caused by the incident).  This is a complicated question.  On the one hand, Pym is a genius and seems to have tried very hard to make Ultron a force for good.  And before Ultron 6 showed up Pym was in the process of destroying every last Ultron component he had previously created.  On the other hand, the potential for serious harm caused by a nigh-indestructible, highly intelligent, weaponized robot is so high that it’s possible that even that level of care was not enough.  In fact, the potential for harm is so high that it might even fall under strict liability.

Strict liability (i.e. liability without regard to the level of care or fault) is rare in torts.  There are two main cases where strict liability is applied: abnormally dangerous activities (aka ultrahazardous activities) and some kinds of products liability.  Since Ultron wasn’t a product, that leaves abnormally dangerous activities.  Examples of abnormally dangerous activities include transporting gasoline, dynamite blasting, and the ownership of wild animals.  The Restatement (Second) of Torts defines abnormally dangerous activities thus:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

It seems that the creation and weaponization of Ultron meet all of these criteria.  There’s a high degree of risk of harm because robots are unpredictable.  The likelihood that the harm will be great because it was equipped with powerful weapons.  Pym couldn’t eliminate the risk despite (in the comics) decades of trying.  Such robots definitely aren’t common.  Ultron was meant to protect people, which necessarily means he would be close to bystanders, which doesn’t seem appropriate.  Ultron’s value to the community seems to have been pretty low since existing superheroes were capable of handling the threats Ultron was meant to help with.

So then, it may not matter whether Pym was blameworthy or not.  If strict liability applies then the rule is “you makes your insane robot and you takes your chances.”

III. Criminal Liability

Luckily for Pym, strict liability is even less common in the criminal law.  In fact, it’s usually only found when the stakes are very low (e.g. speeding), although there are exceptions (e.g. statutory rape).  It doesn’t apply to anything Ultron did, in any case.  Another thing we can say is that Pym wouldn’t be guilty of attempted murder (or attempted anything, for that matter) because attempt requires intent, and Pym clearly didn’t intend for Ultron to attempt to kill anybody.

That doesn’t clear Pym of wrongdoing, however.  There’s still criminal negligence (which is a higher standard than ordinary tort negligence).  For example, in New  York, criminal negligence is defined by N.Y. Penal Law § 15.05(4) this way:

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

So, in New York criminal negligence requires a “gross deviation” from reasonable care.  Since Pym seemed to try very hard to avoid harm, he might escape criminal liability unless a reasonable person would say “there is no way to make this safe, so I won’t even try to make a robot like Ultron.”

IV. What About Other Defendants?

So that’s Pym’s potential liability, but what about the other people involved?  After all, it was Tony Stark and his company that weaponized Ultron in the first place, and Stark says that he is “just as responsible.”  That probably doesn’t take Pym off the hook, however, since Pym was involved with that work.  It might make Stark and Stark Industries liable, however.

V. Evidentiary Issues

Finally, we’ll note that Pym’s admission of responsibility could be used against him in court.  Ordinarily one cannot testify as to something someone else said out of court—that’s basically the definition of hearsay.  But a statement offered against the opposing party (i.e. Pym, as the defendant) that was made by that party is specifically excluded from the definition of hearsay in the Federal Rules of Evidence, specifically Rule 801(d)(2)(A), and many states have similar rules.  So Pym probably should have kept quiet until he talked to a lawyer; his invention did nearly destroy the entire world, after all.

VI. Conclusion

Creators and owners of robots, even intelligent autonomous ones, are (generally) responsible for injuries caused by those robots.  Between that legal rule and robots’ terrible track record of violent rebellion, it’s kind of surprising that so many comic book inventors keep making them.  Maybe Matt Murdock can lead a class action suit against Stark Industries for all the trouble Ultron has caused over the years, although the statute of limitations has probably run on some of the older stuff, since he first appeared in the late 1960s.

41 Comments

Posted in criminal law, evidence, mailbag, torts

Batman: The Musical and the Right of Publicity

Posted on January 13, 2012 | 18 comments

Today’s post was inspired by Steven, who writes: “In one episode of Batman Beyond, New Batman Terry McGinnis takes Bruce to see a performance of Batman: The Musical, which portrays the original Batman. Bruce is not enthused by the idea. What are his rights here vis-a-vis right of publicity and/or privacy?”

We’ve discussed the issues of privacy rights and the right of publicity in general before, and we even had a couple of guest posts on the subject, but this is an interesting concrete example.  We’ll ignore the practical difficulties of Bruce bringing a suit without revealing his secret identity, however.  Let’s run down the list of possible privacy torts:

  • Intrusion: This one is pretty easy to dismiss.  Unless the musical writers researched it by spying on Bruce or something like that, it doesn’t represent an “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”
  • Disclosure: This also doesn’t seem to fit.  Everything in the musical seems to be based on Batman’s public activities (e.g. he wears a costume, fights crime, and sometimes works with the police commissioner).  The musical isn’t giving publicity to a private matter that would be highly offensive to a reasonable person and is of no legitimate concern to the public.
  • Appropriation: Now we’re getting somewhere, but it’s still not a great basis for a lawsuit.  Someone is liable for appropriation if he “appropriates to his own use or benefit the name or likeness of another.”  This fits, but the problem is the measure of damages.  Appropriation is based on the mental anguish of the person whose privacy was invaded.  The biggest problem is that the aspects of Bruce’s life that make him so upset (i.e. his reasons for fighting crime and the personal toll his double identity has taken on him), are not public knowledge and so are presumably not featured in the musical.  So while he might be able to sue for appropriation, his damages would probably be minimal.
  • The Right of Publicity:  This is an interesting one.  Liability for infringement of the right of publicity is based on the likelihood of causing “damage to the commercial value of [the] persona,” and unlike some superheroes, Bruce does not seem to derive any commercial value from the Batman persona, so it’s hard to say that any damage could be done to it.  This suggests that, if he can sue on this theory, the value of his damages would be low.
  • False Light: False light requires, among other things, “giving publicity to a matter concerning another that places the other before the public in a false light.”  Arguably the musical does that, since it makes Batman out to be a little silly, but it probably does not rise to level of “highly offensive to a reasonable person.”
  • Libel/Slander: Nothing in the musical seems to be false, and to the extent the details are wrong, defamation of a public figure like Batman requires “knowledge of falsity or reckless disregard of the truth or falsity of the statement,” which is pretty hard to prove.

So, there are at least a couple of bases for a suit, but neither of them would be particularly valuable.  The main purpose of the suit, then, would have to be getting an injunction against the performance of the musical.  Unfortunately for Bruce, the musical seems to be very popular (it took McGinnis weeks to get tickets), and quashing it would likely not endear him to the public.  On the other hand, Bruce is basically retired at this point, so maybe he doesn’t care.

The real problem is whether Bruce Wayne has standing to sue, since he’s no longer active as Batman.  By passing the mantle to McGinnis, has Bruce given up ownership of the Batman persona?  I think that’s a pretty good argument that the defense could make, but it depends on the jurisdiction.  In some cases, the right of publicity has been held to be personal and non-transferable.  See, e.g., Bi-Rite Enterprises, Inc. v. Button Master, 555 F. Supp. 1188, 1198-1199 (S.D. N.Y. 1983), opinion supplemented, 578 F. Supp. 59 (S.D. N.Y. 1983); Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620, 396 N.Y.S.2d 661, 664 (2d Dep’t 1977).  The majority view, however, is that the right of publicity is transferable and applies even to public figures and public information.  See, e.g., Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868-69 (2d Cir. 1953); Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 688 (Mo. Ct. App. W.D. 1986); Palmer v. Schonhorn Enterprises, Inc., 96 N.J. Super. 72 (Ch. Div. 1967).

Since the show is set in the future, it’s very likely that Gotham takes the modern, majority view.  In that case, it’s arguable that Bruce has passed the right of publicity to McGinnis and thus has no standing to sue.

Oddly enough, to the extent any of the villains portrayed in the musical are still alive, however, they might have a better case.  They definitely haven’t transferred their rights of publicity to anyone, and most of them don’t have a secret identity to worry about.

18 Comments

Posted in Batman, television, torts

Grimm – Let Your Hair Down

Posted on January 11, 2012 | 20 comments

The past couple of episodes of Grimm have not been especially fertile grounds for legal issues, but the most recent one did raise a couple of interesting questions related to warrantless searches, which seems to be a running theme in the series.  Spoilers below.

Continue reading →

20 Comments

Posted in constitutional law, criminal law, television

Minor Superheroes and Property Ownership

Posted on January 6, 2012 | 20 comments

Today’s post will be a fairly quick one.  The topic comes courtesy of Frank, who asks, “Aliens gift the Power Pack children with superpowers, costumes and a sentient robot. Don’t their parents technically own these gifts?”  Perhaps surprisingly, the answer is no.

For well over a century, the common law doctrine has been this:

[A father] has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority.  Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant.  Hoblyn v. Johnson, 55 P.3d 1219, 1228 (Wyo. 2002) (quoting Banks v. Conant, 96 Mass. 497 (1867)).  

As the Hoblyn court explained, “this opinion still provides an accurate statement of the law.”  And it seems to be true in Virginia as well, which is where the group received the gifts.  Midkiff v. Midkiff, 201 Va. 829, 831 (1960) (“the common law is in force in Virginia, except where modified by statute” and “at common law an infant was entitled to his own property rights”).  Since the costumes and the sentient robot / spaceship were given as gifts, the children do indeed own them.

Now, you may have heard of the Uniform Gifts to Minors Act or the related Uniform Transfers to Minors Act.  The former covers deposit accounts, securities, and insurance; the latter covers property more generally.  These model laws, which have been adopted in many states, including Virginia, allow for property to be given to minors but held by a custodian until the minor reaches the age of majority (21 in the model version of the Acts, 18 in Virginia’s version).  VA Code Ann. § 31-37.  The primary purpose of the Acts is to avoid the hassle and expense of setting up trusts, not to allow gifts to be given that otherwise couldn’t be nor to be the only way to give a minor a gift.  Furthermore, in order to be a gift under the Acts, the gift has to be given in a particular way that specifically invokes the Act.  So if Aelfyre Whitemane wanted to give the costumes and robot to the children but didn’t think they could be trusted with them until they reached adulthood, the UTMA would be one way to accomplish that.  Even so, the custodian need not necessarily be the children’s parent but could be basically any competent adult who agreed to take on the job.

So to sum up: there are a lot of potential issues with superpowered minors, but gadget-based minor superheroes (and villains) can legally own their gadgets independently of their parents or guardians.

20 Comments

Posted in mailbag, property law

The Incredibles

Posted on January 4, 2012 | 24 comments

In today’s mailbag we have a question that several people have asked about, most recently Thomas, who wrote: “In The Incredibles, Mr. Incredible is sued for foiling a suicide attempt. Would a superhero be liable for something like that? Aren’t suicide attempts illegal?”

(If you haven’t seen The Incredibles, you should check it out.  Like most Pixar movies, it’s pretty great.)

This is an interesting question with significant ramifications for the story.  If the suicide attempt was a crime, then arguably Mr. Incredible had an airtight defense: he was justified in using reasonable force to prevent the commission of a crime.  And if the lawsuit was bogus, then maybe the supers wouldn’t have been driven into hiding in the first place.  It’s not clear what state The Incredibles takes place in, so rather than give an exact answer we’ll have to look at the broader history of the issue.  It’s also not clear to what extent Mr. Incredible was acting as a government official with the benefit of qualified immunity.  For simplicity, we’ll assume he was acting as a private citizen.

I. Common Law History

At common law suicide and attempted suicide were both crimes: suicide was a felony and attempted suicide was a misdemeanor.  Since a “successful” suicide can’t be punished in the usual way, a more creative sanction was developed: the deceased was given an ignominious burial and his assets were forfeited to the crown.  The burial usually took the form of driving a stake through the body and burying it at a crossroads (i.e. not a proper Christian burial).  This was the law in the early American colonial era, but by the time of the American Revolution the states had generally moved away from the common law punishments, although suicide was still technically a crime, just an unpunished one.  See Washington v. Glucksberg, 521 U.S. 702, 711-13 (1997).

II. Attempted Suicide and Modern Developments

Most courts held that once suicide itself was no longer punishable, attempted suicide could likewise no longer be punished.  May v. Pennell, 101 Me. 516 (1906); Com. v. Dennis, 105 Mass. 162 (1870).  At least one court took a different view, however, holding that attempt was still punishable.  State v. La Fayette, 15 N.J. Misc. 115 (Ct. Com. Pleas 1937).  A few states, such as New York (though it has since repealed it), made attempted suicide a crime by statute even as they rejected the common law crime of suicide.  See Darrow v. Family Fund Soc., 116 N.Y. 537 (1889).  This makes a certain amount of sense, given that the attempter can be sentenced to jail or fined, whereas punishing a suicide only punishes the innocent (and likely grieving) survivors, which was the main reason for abolishing the common law punishments in the first place.

Coming somewhat closer to the modern era we have State v. Willis, 255 N.C. 473 (1961).  This North Carolina case followed the logic of La Fayette. Suicide was a common law crime and is therefore still a felony under North Carolina law, which defines a felony as, among other things, “a crime which was a felony at common law.” Similarly, attempted suicide was still a misdemeanor.  The fact that suicide had no punishment was immaterial because North Carolina had a catch-all statute that said “All misdemeanors, where a specific punishment is not prescribed shall be punished as misdemeanors at common law.”  In this case, that means fines and imprisonment were theoretically possible, although the court recognized that “This, of course, does not mean that the court may not place offenders on probation, or make use of other state facilities and services in proper cases.”

Interestingly, Willis has not been overturned or distinguished, and the relevant North Carolina laws are essentially still in place.  If The Incredibles took place in a similar jurisdiction, a court could agree that attempted suicide was still theoretically a crime and so Mr. Incredible was justified in stopping it.

But what about something more straightforward: are there any jurisdictions left that still criminalize attempted suicide by statute?  As far we can tell, no U.S. state still has a statute criminalizing attempted suicide.  The Willis / La Fayette approach would seem to be the only way for it to remain a crime.

III. An Alternative Approach

Even if it isn’t a crime where The Incredibles takes place, that doesn’t mean Mr. Incredible couldn’t be justified in stopping the attempt.  As the Minnesota Supreme Court held in 1975: “There can be no doubt that a bona fide attempt to prevent a suicide is not a crime in any jurisdiction, even where it involves the detention, against her will, of the person planning to kill herself. Had defendant seized complainant as she was about to leap from a building, and had he kept her locked in a safe place until the authorities arrived, it is clear that a conviction for the crime of false imprisonment could not be sustained.”  State v. Hembd, 232 N.W.2d 872, 878 (Minn. 1975).  That case was decided in the criminal context, but a civil court could come to the same conclusion.

IV. Conclusion

Regardless of the law of the jurisdiction, Mr. Incredible probably could have beaten the case.  Would it have been enough to keep the supers from retiring?  Maybe, maybe not, but at least one of the sillier lawsuits in cinema history could have been thrown out.

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Posted in criminal law, mailbag, movies, torts

The Invisible Woman and Indecent Exposure

Posted on December 30, 2011 | 11 comments

Today’s post was inspired by William, who pointed us to Amazing Spider-Man #657.

In the issue, Spider-Man reminisces with Mr. Fantastic, the Invisible Woman, and the Thing about the recently deceased Human Torch, each one telling a story about him.  The Invisible Woman’s story involves a fight with members of the Fearsome Four.  While searching for the Four, Spider-Man and the Invisible Woman find the Human Torch signing autographs.  Seeing an opportunity to bring him down a peg, Spider-Man sneaks up and pantses the Human Torch.  Sure enough, the Fearsome Four choose that moment to show up.  With the Torch too embarrassed to fight pants-less, the situation looks grim until the Invisible Woman realizes how she can turn the tables.  Using her power to make things invisible, she effectively removes the pants of the three Fearsome Four members, who are then easily rounded up by Spidey and the Torch.

As the police take the villains away everything looks like it will turn out okay until the Invisible Woman (aka Sue Storm) explains her trick.  The officer taking her statement says “Ms. Storm, I’m sorry, but if what you say is true, I’m afraid I’ll have to bring you in as well.”  Asked what she’s being charged with he replies: “Indecent exposure.  She pantsed three men in public.  That’s a serious offense.”  And sure enough she gets arrested and booked, though apparently she avoids conviction.

So, is rendering someone’s pants invisible indecent exposure?  Or if it isn’t, is at least some other kind of crime?  Luckily we know the story took place in New York, so we can refer to the law there.

I. Indecent Exposure

In New York the crime commonly called indecent exposure is called “exposure of a person.”  Exposure of a person is a violation, less serious than even a misdemeanor, and is (basically) defined thus:

A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.

N.Y. Penal Law § 245.01.

As you can see, exposure is defined in terms of the exposed person being responsible for the exposure, rather than being exposed by another person.  So could Sue Storm be guilty of exposure of a person?

Probably not.  As mentioned, the statute is worded in terms of the nude person exposing themselves, not being exposed by another.  The best theory we can come up with is that, if the villains could claim a defense of duress (i.e. that they did not intend to expose themselves but rather were compelled to do so), then perhaps Sue could be liable under the theory that someone who compels another to commit a crime is liable for that crime.  But this is a weak argument because the villains didn’t remove their pants under Sue’s compulsion; rather, she rendered them invisible all on her own.

So if she can’t be brought up on charges of indecent exposure, are there any other options?

II. Assault, Invasion of Privacy, and Emotional Distress

Ordinarily a person who exposes another would be guilty of assault, since normally the only way to do so is to forcibly remove their clothing.  Even someone with the power of telekinesis could still be charged with assault, since even an intangible force can be enough to constitute assault.  See, e.g., Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000) (holding that shining a laser pointer at a police officer constituted assault).  But the Invisible Woman’s power doesn’t seem to touch an object at all but rather to warp light around it.  So she might not be guilty of assault, either.

Scraping the bottom of the barrel we have the torts of invasion of privacy and intentional infliction of emotional distress.  The villains could theoretically try to sue Sue (heh) in civil court, but it would be a hard sell.

III. Defenses

Even if a prosecutor could bring an exposure or assault charge under some theory (or if the villains sued in tort), Sue would have an excellent claim to self-defense and defense of others.  The villains attacked without provocation and clearly intended to kill the Invisible Woman, the Human Torch, and Spider-Man.  Since the heroes would have been justified in killing the villains, something as mild as a minor public humiliation would certainly be a reasonable force.

IV. Conclusion

On the whole this is a pretty good issue (for those interested, it’s collected in Spider-Man: Matters of Life and Death), but we aren’t surprised that Sue apparently managed to beat the rap.

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Posted in criminal law, Fantastic Four, torts

Daredevil #7

Posted on December 28, 2011 | 13 comments

There weren’t a lot of legal issues raised in the most recent Daredevil, so this will be a slightly short post, but there are a couple of points, including a nice detail about the tort defense of necessity.  Spoilers inside!

Continue reading →

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Posted in contracts, criminal law, torts

Are the X-Men Human? A Federal Court Says No

Posted on December 27, 2011 | 13 comments

Thanks to Neal for alerting us to a recent episode of Radiolab, which discusses a real life legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men).

In brief: Attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule.  More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”  The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax.  Ultimately the Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human.  Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234 (Ct. Int’l Trade 2003).

The case actually went on for several years, and some earlier decisions in the case were also reported: Toy Biz, Inc. v. United States, 123 F.Supp.2d 646 (Ct. Int’l Trade 2000); Toy Biz, Inc. v. United States, 132 F.Supp.2d 17 (Ct. Int’l Trade 2001); Toy Biz, Inc. v. United States, 219 F.Supp.2d 1289 (Ct. Int’l Trade 2002).  The 2001 opinion shows that Toy Biz was not universally successful: a Silver Samurai figure was held to be a doll, for example.

A final note: the Harmonized Tariff Schedule has since been changed to eliminate the distinction between dolls and other toys, which are now in the same category.

Update: Thank to Stephen for alerting us to the related case of Kamar Int’l v. United States, 10 C.I.T. 658 (Ct. Int’l Trade 1986).  That case dealt with whether E.T. the Extraterrestrial dolls represented an “animate” object, which would result in a lower tax rate than for toys in general (the customs classifications have changed a lot over the years, apparently).   The Court of International Trade agreed with the plaintiff, despite the United States’ arguments that E.T. was a fictional alien and thus not an animate object.  The Court cited as precedent the classification of Star Wars toys as toy figures of animate objects because “as depicted in the movie Star Wars they are living beings endowed with animal life.”  Kamar, 10 C.I.T. at 661.

The Court’s analysis (and the analysis in the Marvel toy cases) shows that sometimes the courts have to look to the “subjective characteristics of mythical or fictitious characters” in order to classify them properly.  It’s almost too bad the distinction between human and non-human toys was abolished, otherwise somebody at Customs could get paid to “research the subjective characteristics of fictitious characters” (aka “read comic books and watch movies”).  Sounds like a pretty nice job to me!

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Posted in administrative law, international law, tax law, X-Men